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AN 



ADDRESS 



DELIVERED A^ CONCORD, 



BEFORE THE 



HEW-KAZmPSHXRS HZSTORZCAIi SOOZETY, 



AT THEIR ANNUAL MEETING, 



JUNE 8, 1831. 



\ 



BY CHARLES H. ATHERTON, 

A MEMBER OF THE SOCIETY. 



f 



COZTCOBD : 

PRINTED BY JACOB B. MOORE. 
1831. 



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ADDRESS. 



Mr, President^ and 

Gentlemen of the Historical Society^ 

I APPEAR at your request to discharge a duty, 
which no member of the Society should feel him- 
self at liberty to decline — the duty of not withhold- 
ing our efforts, however individually humble they 
may be, towards illustrating the natural, civil, lit- 
erary or ecclesiastical history of our State, and by 
that means to manifest our approval^ at least, of 
the important and praiseworthy purposes of its 
Historical Society. You cannot however be in- 
sensible that New-Hampshire is peculiarly fortu- 
nate in her Historian. All the topics, that come 
within the scope of general history, have been 
treated with a diligence of research, a minuteness 
and accuracy of detail, a perspicuity, elegance 
and impartiality, that ought ever to endear to the 
people of this State the name of Belknap. And 
it is a subject of sincere congratulation, that by a 
new edition of his work now coming from the 
press, under the auspices of a most deserving 
member of our Society, it may, as it should, find 
a place on the shelf of every family library in the 
State. Rash and fruitless would be the attempt, 
to enter and glean in any part of the field which 
Belknap has reapt. 

I propose therefore to occupy a short period of 
your leisure,irksomely, I fear, to my audience, up- 
on a subject too frequently passed over by the his- 
torian with a neglectful silence,— a subject never- 



theless, in my apprehension, most intimately con- 
nected with the moral condition, the social har- 
mony, the comfort, prosperity and happiness of a 
community. I refer to the tenure by which real 
estate is holden, and those laws and the adminis- 
tration of them, by which the soil constituting the 
territory of a State, however subdivided among 
its citizens, with their money and personal effects, 
however vast in amount or diversified in kind, are 
transmitted from one generation to another under 
the title of heirs, devisees, or creditors. Our 
subject has little to do with the heroic achieve- 
ments of a State, with the magnificence of its 
public works, or the celebrity of its literature. 
It has little concern with that external grandeur of 
a people, which, while it dazzles the eyes of man- 
kind, too often, like the whited sepulchre, serves 
only to conceal the poverty and rottenness within. 
But if the question be as to the real soundness of 
a community 5 if the question be as to the aggre- 
gate of the comforts and enjoyments of the indi- 
viduals who compose it, then has our subject a 
near relation to its freedom and happiness. With 
less invention than is often employed by the histo- 
rian, the government, spirit and condition of a 
people may be described from a knowledge only 
of their statutes of descent and distribution. By 
these we are led into the interior of the mansion, 
in order to judge of its accommodations and the 
comforts of its inmates, instead of forming our 
estimate of them by an outside view. 

This succession of the living to the property 
and rights of the dying by uniform rules, it should 
be recollected, is the creature of positive law ; and 
while it has proved the most difficult, it is at the 
same time among the greatest and most beneficent 
achievements of civilized man. Taking the usual 
estimate of time for one generation, it follows that 
in every thirty-four years, the whole amount of 



5 

every thing among men and upon the earth, where- 
in right and property can be claimed by the myri- 
ads of human beings that are placed upon it, un- 
dergoes this transfer. And if a country can be 
found, where this immense operation is carried on 
by laws founded on the broad basis of expediency 
and justice, adequate to all the exigencies that can 
happen, so that nothing is left without a rightful 
proprietor, securing and protecting alike the rights 
of all, the strong and the weak, the adult and the 
infant, even though it may not yet have seen the 
light ; if, I say, a community can be found, where 
this intricate and wonderful operation is continu- 
ally going on, and almost unobserved, because it 
is without waste, without fraud, without litigation 
and nearly without expense, we need go no fur- 
ther for proof of the wisdom of its legislation 5 we 
need make no other appeal to satisfy us of the in- 
telligence and moral condition of such a people. 

Indulging the belief that the object of legisla- 
tion in this important branch of civil polity was 
never more nearly attained than it is in this State, 
can it be without its interest, may we not even 
find it useful, to contemplate the origin, and trace 
the progress of those principles and views which 
from time to time have been recognized and sanc- 
tioned by the legislative power, and are now em- 
bodied into a system commonly known as our 
Probate Law 1 

At the time of the emigration of our ancestors, 
the feudal system pervaded Europe, A more gi- 
gantic or cunningly devised engine to make lords 
of the few and vassals of the many could not be 
imagined. Indeed this was the heart and life blood 
of it. All grants of territory in the western hem- 
isphere by the European sovereigns, had hitherto 
been made to the adventurers, as their vassals, up- 
on the principles of this system. But most fortu- 
nately for mankind, there still remained in Eng- 



6 

land some vestiges of liberty and of the freedom 
of the Saxon institutions. In the county of 
Kent in particular, the tenure of free and com- 
mon soccage had been preserved. The peculiar- 
ities of this tenure were, that the duties of the 
holder to his superior were limited and certain, 
and might be only that of allegiance to the sover- 
eign which belongs to our fee simple estates. It 
was devisable by will, and not forfeited by crime. 
Although, as an inheritance, it was generally sub- 
ject to the rule of primogeniture in the male line ac- 
cording to what then was, and now is the English 
common law, it nevertheless admitted of various 
modifications by custom, among which were found 
what is called gavelkind, or an equal distribution 
among all the male children. This tenure surviv- 
ed the general wreck of Saxon liberty. It resist- 
ed the torrent of the Norman invasion, and stood 
like a beacon amidst the surrounding desolation, 
to rally the lovers of freedom in a future age. In 
the fermentations of the spirit of liberty in Eng- 
land, efforts had often been made to resolve the 
feudal tenures into that of free and common soc- 
cage, as the most free and desirable of all. These 
efforts were unsuccessful until their operation was 
generally suspended during the usurpation of the 
Parliament and of Cromwell, and they were final- 
ly abolished by law on the restoration of Charles 
II., in 1660. But this was forty or fifty years af- 
ter the colonization of New-England. 

It was however among the whims of that whim- 
sical monarch, James I., in 1620, when he issued 
his patent to the council established at Plymouth, 
in the county of Devon, for the planting, ruling, or- 
dering and governing New-England in America, 
that he, of his own mere motion and certain 
knowledge, was pleased to make the grant to them, 
their successors and assigns, to be holden of him 
and his successors, as of his manor of East Green- 



wich ill the county of Kent, in free and common 
soccage and not in capite or by knight -service, 
reserving in full of all other duties, demands and 
services, one fifth of all the ores of gold and silver. 
This reservation amounted to nothing, so that in 
fact, the grant constituted what we now under- 
stand by an absolute estate in fee simple for alle- 
giance only. This was the parent stock of all the 
grants in New-England. We shall soon see how 
the puritans understood, or affected to understand, 
this tenure by free and common soccage, and how 
they moulded it to their own views. 

The fact here furnished is among the most impor- 
tant in our civil and political history. All vassalage 
was excluded. Every man became the absolute 
proprietor and lord of his own fee. Under God, 
it was the fostering nurse of that spirit of inde- 
pendence, that self respect, that consciousness of 
possessing all the rights that belong to a man, 
equal to the rights of any other man, and that 
rising of indignation in the bosom at every thing 
like oppression, by which the yeomanry of this 
country are so peculiarly distinguished. It is the 
parent also of our system of general education, 
for these peers or equals claimed an equal share in 
its advantages for themselves and their children. 

It is impossible to say with much precision what 
a different impress of character, a different tenure 
and distribution of landed property might have 
communicated to the people, that spread them- 
selves over the United States ; but no one can 
doubt, that our destiny would have been less cheer- 
ing to the friends of civil and religious liberty. 
We might not have been, as we now are,an exam- 
ple to the world of the peaceful enjoyment of 
equal rights, or the teachers to mankind of the 
difficult lesson of self government. 

So utterly opposed were our puritan ancestors 
to the feudal burdens, as if to make certainty more 



8 " 

sure, in 1641 , the great and general court of Massa- 
chusetts ordered and declared that all lands and 
heritages shall be free from all fines and licenses 
upon alienations, and from all heriots, wardships, 
liveries, primer seisin, year and day waste, es- 
cheats and forfeitures upon the death of parents 
or ancestors, natural, unnatural, casual or judi- 
cial, and that forever." 

No records remain to inform us by what rules, 
in the first years of the colonies of New- Plym- 
outh and Massachusetts, the estates of persons de- 
ceased were distributed, but there is no reason to 
doubt that the governor and assistants in both 
colonies, and sometimes the whole general court 
acted as a court of Probate, and distributed es- 
tates, not according to any uniform rule establish- 
ed among themselves, or by any rules established 
in England. What strikes us with amazement is, 
that in the first dawnings of their legislation they 
break down all the leading distinctions prevailing 
in the mother country, and of which they cannot be 
ignorant, between real and personal estate, and 
place land very much upon the same footing with 
goods. When their county courts were estab- 
lished, the probate jurisdiction was given to them, 
with an appeal to the court of assistants. Distri- 
bution was made according to their views of the 
wants and merits of the family. The whole 
estate, both real and personal, was sometimes 
assigned to the widow or the administrator, or 
some relation who would undertake to support 
the widow and provide for the children. Lands 
were made equally liable with goods for all debts, 
giving no preference to bond or judgment debts 
over those by simple contract, and making no dis- 
tinction in favor of those debts, where the ances- 
tor by seal had bound his heir. When the estate 
was insolvent, application was made to the gener- 
al court, who took measures to ascertain the 



9 

estate and the debts, and to have them satisfied 
in a ratable proportion. Both real and personal 
property was set off to creditors by appraisement. 

Now nothing could be more inconsistent with 
English law, than these proceedings of the Puri- 
tans, who have been said, and I think too un- 
guardedly, to have brought with them the laws of 
England. 

Nothing could be more loose and informal than 
their probate proceedings. The same looseness 
also prevailed in their conveyances of land 5 for by 
a law of the Massachusetts Colony, in 1651, 
which was twenty years after their settlement, we 
find the legislature enacting, that no deed of land, 
intending to convey an estate of inheritance, shall 
be valid for that purpose, unless the word heirs is 
used 5 providing, however, that this law should 
not operate against former conveyances. 

The people of both Colonies grew dissatisfied 
with the wide discretion exercised by their county 
courts, in disposing of the estates of persons de- 
ceased, and called for some more uniform rule. 
The colony of Plymouth, somewhere between the 
years 1633 and 1636, established their law of 
descent. They recognize the free tenure of East 
Greenwich, in the county of Kent, as that by 
which they held their lands, and they adopt the 
custom of gavelkind, that is, a descent to the 
males in exclusion of females, as if that were the 
general quality of free and common soccage, in- 
stead of primogeniture ; with a proviso, however, 
that the eldest son shall have a double portion. 
This they do out of regard to the law of Moses, 
referring to Deuteronomy, xxi. 17. The personal 
estate, after bringing up small children, and set- 
ting aside a sum for the decrepit and helpless, 
the payment of debts and funeral charges, was to 
be equally divided among all the children, saving 
to the eldest son a double portion, unless the lands 

2 



10 

assigned him should amount to a double portion 
of the whole estate. 

It has been brought as a reproach against the 
Plymouth colony, that they gave to the daughters 
no share in the real estate. This reproach is un- 
just, and comes from those who are not sufficient- 
ly acquainted with their legislation. They had a 
very prompt and effectual method of providing for 
them. Their county courts were authorized to 
apportion the daughters, as should be just and 
reasonable, out of the estate of the heir or heirs 
male, and to issue execution therefor. Thus did 
this piousjkind hearted and chivalrous people sat- 
isfy their own views of justice 5 pay due deference, 
as they supposed, to the law of their tenure and 
the still higher authority, in their estimation, of 
the laws of Israel. 

About 1641, her younger but more powerful^^ 
as well as more stern and arrogant sister, the 
Colony of Massachusetts, began to approach the 
subject of distribution by legislative enactments. 
The county courts of the jurisdiction where the 
intestate had his last residence were authorized 
to assign to the widow such part of the estate as 
they should judge just and reasonable, and to as- 
sign to the children and other heirs their several 
parts and portions, providing that the eldest son 
shall have a double portion, and where there were 
no sons, the daughters to inherit as coparceners, 
unless the court, upon just cause alleged, should 
otherwise determine. They had before, in their 
fundamentals, laid down the general rule in the 
following words : " Estates shall descend to the 
next of kin according to the law of God." 

We see here that the discretion of the court 
must, in a considerable degree, have constituted 
the law of the land ; but real and personal estate 
were placed under the same rules of distribution, 
and the equal rights of all the children in both 



11 

species of property acknowledged, with the excep- 
tion of a double portion to the eldest son. From 
time to time the laws assume a more de^nite char- 
acter, as the exigency of the people required. It 
is impossible, however, in many cases to fix the 
dates of their various enactments. For in the 
several revisions of the laws, both of Plymouth 
and Massachusetts, the old laws were brought 
forward and incorporated with alterations into the 
new, without their original dates, or with such 
confusion of dates, as to leave it very much a 
matter of conjecture. 

The committee of the legislature of Massa- 
chusetts, appointed in 1812, to collect and pub- 
lish the laws of the colony and province, which 
had become scarce and difficult to be found, were 
not able to remedy this inconvenience. It is very 
much to be regretted, also, that their authority 
did not extend to the colony laws of Plymouth. 
Considering that Plymouth, before she was in- 
corporated with Massachusetts by the province 
charter of William and Mary, in 1691, had been 
a colony for eighty years, equally independent, 
wise and peculiar in its legislation 5 that she 
brought to that province a most interesting and 
valuable territory, then divided into three counties 
and twenty towns, with a population estimated at 
thirteen thousand souls, it is somewhat surprising 
that her laws should not have been thought wor- 
thy of being collected and published. As matter 
for history they are surely as interesting, and 
have as much bearing on land titles within the 
territory to which they applied, and would be as 
explanatory of subsequent and existing laws, as 
the colony laws of Massachusetts. It seems to 
me that this strange neglect can be accounted for 
only upon the entertained belief that those laws 
did not exist, or could not be found. Hutchinson, 
m his history, had said that Plymouth had never 



12 

established! any distinct code or body of laws. 
Francis Baylies, Esq. the recent meritorious and 
indefatigable historian of that colony, fully prpves 
Hutchinson's mistake. He admits, however, that 
there is not a single printed copy of their laws 
now extant. It gives me pleasure to be able to 
say that this is also an error. In the Boston 
Atheneeum there is a copy of the Plymouth colo- 
ny laws, printed by Samuel Green, in 1685, by 
order of the general court of New-Plymouthj 
held at Plymouth June 2, 1685. It forms the lat- 
ter part of a volume in which are bound the colony 
laws of Massachusetts printed by Benjamin Harris 
in 1692. 

It must be acknowledged, however, that there 
was a great affinity and correspondence in the leg- 
islation of the two colopjes, and that Massachu- 
setts generally took the lead. For although the 
pilgrims had settled at Plymouth ten years before 
the arrival of the Massachusetts colonists, as 
they had no charter for government, they relied 
principally on their voluntary association and their 
church government for order, until twelve or six- 
teen years after their landing, whereas the Mas- 
sachusetts colony brought with them a charter for 
government, and began to put forth their princi- 
ples and pass ordinances the next year after their 
arrival, that is, in 1631. There was nearly the 
same correspondence in the legislation of Plym- 
outh and Massachusetts before their union as 
there was in that of Massachusetts and New- 
Hampshire after our separation. 

It will be recollected that in 1641, the settle- 
ments in New-Hampshire voluntarily came under 
the jurisdiction of Massachusetts 5 that this union 
was cordial and satisfactory, and that it continued 
to the year 1680. It was then broken by the au- 
thority of the king, and renewed subsequently 
for a short period after the deposition of Andros 



13 

until 1692, when a new executi ^e was appointed 
by the crown for the province of New-Hamp- 
shire, and ahnost contemporanec jsly the colonies 
of Massachusetts and Plymout^i, and the District 
of Maine were by the char' er of William and 
Mary united into one royal province. The above 
facts are recited for the purpose of observing, that 
by our early and long continued union with the col- 
ony of Massachusetts, we ,v^ere assimilated to her 
viewsjfeelings, and principles. Most of our towns 
were settled from that prolific hive of the new 
world. We became flesh of her flesh and bone of 
her bone. Her laws were our laws, and after our 
separation, they continued so either by a legisla- 
tive acknowledgment of their authority, or by re- 
enactment, and even down to the present time, 
there are no two states in the Union, whose man- 
ners, customs, habits, principles, laws and institu- 
tions bear so strong a resemblance to each oth- 
er, except perhaps Maine and Massachusetts, 
which till a recent period were united. 

Under the colony laws, as we have already no- 
ticed, real estate was distributable in the same 
manner as personal, the creditor taking therein the 
whole estate of the debtor. But while they bold- 
ly made this inroad upon the law of real property, 
they left estates tail to be regulated by the rules 
of the English common law. Primogeniture 
was here preserved in the male line. The heir 
could not be divested by the tenant in tail, or by 
his creditor, until after the entailment had been 
barred by the fictitious process of a common recov- 
ery. This condition of entailed estates furnished a 
singular anomaly to their general system of laws. 
The state of Massachusetts in 1792, applied a rem- 
dy by authorizing the tenant to bar the entail by 
his own conveyance, and by giving the same ef- 
fect to the levy of an execution by a creditor. If 
the law of England is now in this state the law 



14 

in relation to entailed estates, as I tipprehend there 
is no doubt but it is, the subject is certainly de- 
serving the earlj attention of the legislature. On 
Q^amination I think it will be found that our stat- 
ute for the levy of executions on real estate will 
not divest either the remainder man or the heir of 
the tenant. 

Under the colony laws, also, the county court 
as a court of probate was authorized to ascertain 
the debts against insolvent estates, by means of 
commissioners, and to order payment in a ratable 
proportion 5 to make the widow an allowanccjout 
of the personal estate, of such articles as were 
exempt from attachment 5 to set off to her use one 
third part of the real estate 5 to order the sale of 
real estate for the payment of debts, and also in 
performance of the contract of the deceased 5 to 
appoint guardians to minors and persons non com- 
pos I to decree the payment of legacies and dis- 
tributive shares, with the singular power of issu- 
ing executions to carry their decrees into effect. 

By the statute of the 22d and :23d of Charles II. 
in 1670, it was made imperative on the courts of 
probate in England to take security of adminis- 
trators, and the rules for the distribution of the 
personal estate of an intestate were more accu- 
rately defined. This law was soon followed in 
the provinces here, and applied to real estate as 
well as personal, with the favorite exception among 
the puritans of a double portion to the eldest son. 
This law now constitutes the grand basis of our law 
descent and distribution. Here also we find the 
confirmation of the common law right of the wid- 
ow to one third, and under some circumstances, 
tjo one half of the personal estate as her distribu- 
tive share. 

At the time of the emigration of our ancestors, 
it was within the discretion of the ordinary to re- 
quire bonds of an administrator to return an in- 



15 

Ventory and to account, because the administrator 
was his substitute in the particular case. But 
from executors who were the agents of the testa- 
tor, and of course having his personal confidence, 
it was thought as improper to require security af^ 
ter his death, as it would be to require it of the 
testator when living. He had not required his 
executor to give security, why should the probate 
court 1 The means here of compelling executors 
to perform their duties wore not at hand as they 
were in England, and it became a most embarras- 
sing subject. We now look back with surprise 
to see with how much difficulty this prejudice in 
favor of executors was at last overcome. Vari- 
ous enactments were made to prevent executors 
from defrauding creditors and legatees. As late 
as 1714, we find by the provincial laws that exec- 
utors were to return an inventory, or to give bonds 
to pay the debts and legacies, with a proviso that 
no bonds should be given, where there were resid- 
uary legatees ; but in that case the executor 
should account. The reason is very plain that 
without an account, the residuary legatees had no 
means of ascertaining their shares. Strange as it 
may appear, the legislature of this State did not 
make the very useful and what seems to us, the 
very obvious and simple enactment requiring the 
executors to give bond to return an inventory and 
to account, until the 3d of Febuary 1789. And 
to the honor of New Hampshire be it said, that 
on the same day by her statute for the distribution 
of intestate estates then passed, she adopted the 
christian principle of equality and rejected the 
mosaical institution of the double share to the el- 
dest son, which up to that period had been the law 
of the people of this State, In June of the same 
year the Commonwealth of Massachusetts follow- 
ed N^w Hampshire in making the same important 
change in their law gf descent. 



16 

In 1718, a great advance was made in the pro- 
bate law here, by authorizing the judge of pro- 
bate for the province to license executors and ad- 
ministrators to make sale of so much of the real 
estate, as should be necessary to pay the debts 
and legacies. It was not until a century after- 
wards that Massachusetts gave to her judges of 
probate the same authority. This power was 
there very incommodiously vested in their supreme 
court and court of common pleas. 

During the colonial independence of Massa- 
chusetts, for such it was, while their government 
was wholly popular, the executive, legislative and 
judicial officers, being elected by the suffrages of 
the freemen, as they were during our union with 
her, the county courts were the courts of probate, 
with the right in the suitors to appeal to the court 
of assistants, and from them to the general court. 
In England the probate jurisdiction was ecclesias- 
tical in its character. This originated in the sup- 
posed connexion, inculcated by the clergy in an ig- 
norant age, between the welfare of the soul and 
the pious disposition of the effects of the deceas- 
ed. The soul itself was considered as a proper 
subject of bequest, which the clergy had power 
to carry into effect. Traces of this superstition 
are even now to be found in the formal part of many 
of our wills. It may seem somewhat strange, con- 
sidering the theocratic principles of government 
which prevailed in the colonies of Maschusetts 
and Plymouth, connected with all they had ever 
known of the administration of probate law in 
England, that it should here be made by them an 
affair of civil jurisdiction. But such a distinction 
in the puritan clergy was irreconcilable with some 
of their leading ecclesiastical principles. They 
dreaded hierarchy. The independence and equal- 
ity of the churches and of the clergy were among 
their fundamentals. They were satisfied with 



It 

that influence by which the civil pohty of the col- 
onies was moulded to their views of a godly gov- 
ernment. By means of this, no man could be a 
freeman or vote, unless he were a church member. 
No one could hold an office or be a deputy until 
he received the church «tamp of orthodoxy. It 
was from the pulpit that the laws took their ori- 
gin, and the government has been well enough de- 
signated " as a speaking aristocracy in the face of 
a silent democracy." 

It should not be forgotten,however, that so desir- 
ous was Massachusetts to explain her charter bj^ 
her jurisdiction, she did not require our people to 
take upon themselves the yoke of her orthodoxy. 
Her reUgious scruples here yielded to her policy, 
and most fortunately ; for had she insisted upon 
this as the condition of our union with her, aban- 
doned as we were by the Masonian proprietor, 
destitute and desirous as we were of a govern- 
ment, it is very questionable, whether we should 
not have replied to her, in the language of Wil- 
liam Blackstone, who was the first English inhab- 
itant of Shawmut, a place better known of late 
years by the name of Boston. When solicited by 
the Massachusetts colonists to remain and unite 
with them, his answer was, " I came from Eng- 
land because I did not like the Lord Bishops, but 
I cannot join with you, because I would not be 
under the Lord Brethren.^' 

We are accustomed to look back to this period 
as the golden age of virtue and religion. I would 
not speak disparagingly of the piety, chivalry or 
learning of the few who impress upon history their 
own character and transmit it to future genera- 
tions as the character of the age in which they 
live. But if it be just to estimate the virtue and 
religion of a country by the virtue and religion of 
the individuals that constitute the great mass of 
its population, I listen with an incredulous ear to 

3 



18 

those who insist upon the comparative degeneracy 
of the present times. We undoubtedly have 
much less of what was then called religion, but 
that we have quite as much order, morality and 
virtue, cannot, I think, admit of a doubt. No 
person can examine their laws and judicial pro- 
ceedings, and witness the number and severity of 
their penalties, and notice the offences, which 
from time to time, they were called upon to rem- 
edy by legislation, without being fully convinced, 
that as a community, they had their full share of 
fraud, violence, and crime of the deepest dye. 
When the population of the colony of Massachu^ 
setts could not have exceeded six thousand souls, 
in the year 1635, at the first court when a grand 
jury was used as the accusing power, there were 
one hundred indictments presented for trial, and 
this too, notwithstanding their statute of limita- 
tions, by which prosecutions were barred after the 
offence was two years old. Making all due allow- 
ance for the strictness of their criminal code and 
the petty offences then cognisable, this number 
will appear enormous. It is very much as if, in 
this county of Merrimack, at the next superior 
court, five hundred bills of indictment should be 
found ; whereas the average number, it is pre- 
sumed, does not exceed four for each semi-annual 
term. May we not therefore presume, that in- 
stead of retrograding, we have been making con- 
tinual advancement in social order and virtue. 

When the colonies became of sufficient impor- 
tance to attract the attention and cupidity of the 
crown, possessing the power, it assumed the right 
to put forth new charters of government to appoint 
the executive authority. That executive, whether 
a president, governor, or lieutenant governor, ex- 
ercised in probate matters the power of the ordi- 
nary in England, either personally or by a sub- 
stitute caviled a judge of probate, but who was 



19 

merely his surrogate. Under this administration 
of the probate laws, appeals lay from these judges 
of probate to the governor or president and coun- 
cil. President Dudley, whose administration 
commenced in 1686, and who was to smooth the 
way for Andros, held a court of probate himself 
at Boston, and appointed judges and clerks of 
probate for remote counties, and for the provinces 
of New-Hampshire and Maine. Soon, however, 
Andros arrived with his commission as governor, 
and captain general of all New-England. He 
was the supreme ordinary of the whole territory, 
and had brought to him at Boston from the most 
remote parts, all the probate business. It is said, 
that in some instances, he appointed judges of 
probate with a limited jurisdiction. I have not 
been able to ascertain the fact with certainty, but 
I presume that no one was appointed by him for 
New-Hampshire. 

The inconvenience to which he subjected the 
people in the transaction of their probate business, 
and the exorbitant fees exacted by him, were 
among the causes of the popular discontent by 
which he was deposed, and the old colony gov- 
ernment for a short period resumed. It was this 
Sir Edmund Andros, however, who first introdu- 
ced into New-England the forms for probate pro- 
ceedings used in the ecclesiastical court of the 
mother country. These forms have been here 
used ever since, and in some instances, until re- 
cently, without the alterations which changes in 
the laws not only made proper but essential. 

From the probate records in the county of 
Rockingham, it appears that in 1699, William 
Partridge, Esq. Lt. Governor, appoints guardians 
and grants administrations for the province of 
New- Hampshire, and the records are certified by 
Charles Story, secretary. In 1703, Joseph 
Smith, who was tlien one of the council, officiates 



20 

as Judge of probate for the province, and the rec- 
ord^ are certified by the same Charles Story, as 
secretary and register. It is beheved that after 
this period, there is no instance of the governor's 
holding a probate court personally, but the duties 
were performed by his surrogate, under the name 
of the judge of probate. By the act of 1771, di- 
viding the province into counties, the judges and 
registers of probate were to exercise their respec- 
tive functions only in the counties to which they 
belonged, excepting that the counties of Strafford 
and Grafton, on account of their then paucity of 
inhabitants, were temporarily annexed to the coun- 
ty of Rockingham. 

After the dissolution of the royal government, 
the temporary government then established by the 
people proceeded promptly to fill the vacated offi- 
ces. On the 28th of June, 1776, under the en- 
acting style of the council and house of represen- 
tatives for the colony, they abolished the old court 
of appeals, and made the supreme court of judi- 
cature the supreme court of probate, with awis- 
dom that the people have never seen cause to 
question. This enactment was afterwards incor- 
porated into our constitutional law, and has,no 
doubt, greatly contributed to the uniform admin- 
istration of probate law in this state. It was not 
until the constitution of 1783, that a judge of 
probate was recognized as an independent and 
permanent officer, to be commissioned during 
good behaviour. By custom since that time the 
registers of probate have held their office by the 
same tenure. How this custom originated or on 
what principle it is founded I am unable to dis- 
cern. 

The leading features of our present system of 
probate law, are, Fii^st. The distribution of 
estates real and personal to the next of kin on the 
principles of the civil law, which considers the half 



21 

blood to bs as near of kin as the whole blood. 
By a singular inconsistency with their general 
rule of descent, the Massachusetts colonists ex- 
cluded the half blood. In England, after the stat- 
ute of the 22d and 23d of Charles II. 1670, the 
succession of the half blood was admitted as to 
personal estate. The courts here soon followed 
in their decisions. But strange as it may ap- 
pear, notwithstanding the rule of descent was the 
same in real as in personal estate, it was not set- 
tled in Massachusetts until 1760, that the half 
blood could collaterally inherit real estate, and in 
New-Hampshire, it has very lately been a subject 
of litigation before our superior court. The 
above general rule of descent is subject by our 
statute to certain exceptions, too well known to 
require enumeration here. The expediency and 
justice of one of these exceptions may well be 
doubted. I refer to the exclusion of the mother, 
as the heir to the share which her child has from 
its testate father. It would seem to be a very 
natural presumption, that if the father intended to 
limit the descent of what he gives to a child, that 
he would express that intention in the bequest. 
Secondly. The liability of the real estate in 
default of the personal, for the payment of the ex- 
penses of administration, the funeral charges, the 
support of the children under seven years of age 
of an intestate, and the payment of debts and leg- 
acies, with authority in the courts of probate to 
license administrators and executors to make sale 
of the real estate for these purposes. Thirdly. 
The partition by the courts of probate of all real 
estate, there being no dispute about the title, 
where the parties in interest are by law entitled to 
occupy their shares in severalty. Fourthly. The 
distribution of insolvent estates among all the 
creditors in proportion to their respective claims, 
giving a preference only to the expenses of the last 



22 \ 

sickness and taxes, and these preferences foun- 
ded exclusively on considerations of humanity. 
Fifthly. The probate of wills, the granting of 
administrations, and the appointment of guardians 
to minors, persons non compos, and those spend- 
thrifts and idlers who are likely to subject the town 
to expense for their support, with all the powers 
usually incident to these leading powers combin- 
ed with the duty in the courts of probate to re- 
quire and to take security from all persons who 
are in any way made by them, or by any testate 
act, the trustees of the rights and property of oth- 
ers. Sixthly. The executor is by law made the 
administrator also on all the estate, whether testate 
or not, and security is taken of him accordingly. 
Seventhly. The power in the courts of probate 
to license guardians to sell the real estate of their 
wards, whenever it shall be necessary for their 
support, or conducive to their interest. This is a 
very important part of the jurisdiction of the 
judges of probate, and was not exercised by them 
until authorised by the law of February, 1822 ; 
before which time it had resided in the superior 
court. To this must be added the power of au- 
thorising administrators and executors to convey 
real estate in pursuance of the written contract of 
the deceased, exercised also by the legislature till 
the year 1797, when it was first delegated to the 
courts of probate. 

From this enumeration of the general subjects 
of jurisdiction appertaining to the judges of pro- 
bate in this state, it will be perceived there has 
been a continual tendency in the laws to augment 
their labors and duties, — how beneficially to the 
state, may be inferred from the fact, that the vest- 
ing in them the power of authorising guardians to 
sell the real estate of their wards, compared with 
the former expense of itself, now makes an annu- 
al saving to the people of this state equal to the 



23 

whole amount allowed by law for the support of 
their courts of probate. This expense is four 
thousand eight hundred and forty-five dollars, for 
the pay of eight judges, and as many registers, to 
a population of two hundred and seventy thousand 
souls. 

Taking the data from one county, and estimat- 
ing that the probate business is in proportion to 
the population, the number of administrations 
granted in this State annually, cannot be less than 
six hundred and fifty, about one third of which are 
on testate estates 5 a greater number of guardian- 
ships, and an equal number of inventories and ac- 
counts rendered; three hundred and fifty licenses 
to sell real estate 5 two hundred and ten partitions 
of real estate 5 and one hundred and forty distri- 
butions of insolvent estates. 

In addition to the great economy of this system 
in a public point of view, by which this great 
amount of business, with its various and almost 
innumerable appendages, is transacted, I have 
said it was in this state transacted also with 
such rare instances of fraud, waste, or litigation, 
as to speak volumes in favor of the wisdom of our 
laws, and the morality of our people. 

From an experience of more than thirty years 
in the probate court for the county of Hillsbo- 
rough, I am able to say, that during that time, on- 
ly one instance of deliberate fraud and imposition 
has been detected or even suspected. Insolvent es- 
tates under administration, have paid an average 
of more than fifty per cent. During that period 
also, not more than seven appeals from the judge 
of probate have been prosecuted before the supe- 
rior court, or less than one appeal for every four 
years. Only two of these were litigated before the 
judge of probate, and the major part of them 
were questions as to the sanity of the testator, 
where the parties wished a trial by jury. There 



24 

has not been occasion for prosecuting to judgment 
more than four suits on probate bonds, and in no 
instance has there been any failure of security. 
It is not doubted, that an exhibit from the other 
courts of probate in the state will furnish similar 
and very likely better evidence of the satisfactory 
and successful operation of our probate system. 

It is a subject however, of no very cheering re- 
flection, (I still speak from the records of a single 
county, not doubting that myremarks will apply in 
a greater or less degree to all the counties,) I say, 
it is a subject of no very cheering reflection, that, 
notwithstanding the number of administrations 
and inventories are now greater than at any for- 
mer period, the average amount of the estates, 
and even their aggregate amount has diminished. 
This is mainly to be attributed to the depreciation 
in value of landed property ; and the cause of this 
depreciation is found in the establishment of new 
states, and the policy of the general government, 
by which immense quantities of land of superior 
productiveness are continually at low prices 
thrown into market. It is a principle of political 
economy as certain in its operation as any of the 
laws of nature itself, that the opening for cultiva- 
tion of large tracts of soil of superior fertility, 
will reduce in value the soils of an inferior grade. 
And as there seems to be no assignable termina- 
tion to this action of the general government, wis- 
dom requires that we should be fully aware of its 
effects upon the people of this state, and not suf- 
fer ourselves to be deceived as to their true cause. 

Notwithstanding that in morality, industry and 
activity, the citizens of this state are exceeded by 
no people on earth — notwithstanding the large 
proportion of its uncultivated lands and the com- 
parative sparseness of its inhabitants, we have for 
the past ten years been but little more than able 
to keep up a stationary population. While th© 



25 

mcFease of the United States has been between 
thirty and forty per cent., ours has fallen more than 
twenty per cent, below the general rate, being 
nearly ten per cent, less than that of our neighbors, 
Massachusetts and Vermont, and less than any 
other state in the union, Connecticut and Dela- 
ware excepted. These may be unwelcome truths, 
but do they not bring with them an equivalent of 
consolation and hope? If, as citizens of the state, 
we lament this depleting operation upon ourselves, 
owing to the general character of our soil, of the 
policy alluded to, as citizens of the union, we 
ought to rejoice, and we do rejoice 5 for we see in 
it the promotion of the general good. We see in 
it a wisdom, a patriotism, and a philanthrophy 
which looks to the expansion, the strength, the 
greatness, the happiness and the glory of that un- 
ion, of which, we bless God that we are members. 
Every twenty-four hours adds to this union, a pop- 
ulation equal to that of one of our well settled 
towns. Every year a population nearly double that 
of this state, and in the rapid lapse of that decade of 
years on which we have entered, the increase wi I 
be nearly equal to eighteen such states as our own. 
The thought is overwhelming 5 and if there be 
any thing this side the grave, which can impart val- 
ue to human existence, and give us a just pride in 
our being, it is, that we are members of this great 
and growing community, where liberty and law, 
social order and self-government^ education, vir- 
tue and religion and happiness, almost unmingled, 
go hand in hand, spread and expand with its as- 
tonishing increase of human life, and can feel our- 
selves associated with its past achievements, its 
present prosperity and its future glory. 

And should the ever active intelligence of the 
nation ascertain that it will be wise in the people 
to diversify their industry and pursuits in accom- 
modation to the increasing, multifarious, and in- 

4 



26 

finitely varying wants of an improving and highly 
civilized state of society, and in accordance also 
with that diversity of taste and power, of age and 
sex, of constitutional and mental aptitude in the 
individuals with whom it has pleased the Almighty 
to people the world, and by this means to increase 
indefinitely the working members of the commu- 
nity, who, after supplying their own wants, shall, 
by the enlargement of their private means, be con- 
tinually adding something to the surplus stock, 
and if especially it shall be ascertained that here 
lies the great secret, of national productiveness, 
and consequently of national wealth and national 
power, may we not indulge the hope that a policy 
which shall cherish and protect the industry of the 
country against foreign competition, may create a 
demand and a home market for the products of 
our soil that shall counteract its depreciation from 
other causes? That such would be the tendency 
of such a policy cannot be doubted. Whether 
however its efficacy will prove sufficient to raise 
or only to stop, or only to retard the downward 
progress in value of our landed estates, remains 
with the future to decide. But if this compensat- 
ing policy, (compensating in some degree at least,) 
shall be withdrawn, and the disposition already 
manifested to open to cultivation more and more 
of the soils exuberant in fertility, at cheaper and 
cheaper rates, shall be followed up, it requires not 
the aid of prophecy to foretell, that the pressure 
upon those of us, who shall remain here, will be 
severe in the extreme. 

Writers on population have estimated, that in 
every thirty years,the number of deaths in a 
country will equal the number of its inhabitants. 
This estimate is clearly too short for a climate 
possessing the salubrity of ours. Say then that 
in the coming fifty years, death will draw its pall 
over as many human beings in this state as now 



27 

occupy its surface. We have here the paradox of 
an ever dying, and at the same time an ever Uving 
community. It lives by those who come to take 
the places which we leave, and to succeed to 
and share what we have wrought out for them, 
whether of good or of evil. How important then 
to the legislator should appear the even handed 
justice, the precison and plainness of those rules, 
by which this succession and distribution is guard- 
ed and regulated. How important that they 
should be carried into effect with a care, and fidel- 
ity, and a uniformity, which shall exclude as far as 
possible every source of questionable right, and 
every inducement to fraud, litigation and violence, 
that whatever else we may leave to our survivors, 
a contentious spirit for the spoils of the dying may 
not be among our bequests. Pardon me then, if 
I urge upon you the duty of cherishing your 
courts of probate as important agents in our es- 
timable system of civil polity, and the duty also 
of watching the operation, as well as the adminis- 
tration of our probate laws. 

We have spoken of New-Hampshire at differ- 
ent periods, without sufficiently discriminating its 
real importance at the times of which we spake. 
What, for instance, may be supposed to have' been 
its population in 1641, at the time of the union 
with Massachusetts, and when, on the division of 
that colony into counties in 1643, a county by the 
name of Norfolk was established, extending from 
the Merrimack to the Piscataqua, and of which 
Salisbury near Newburyport was the shire townl 
No reasonable calculation can assign to our terri- 
tory at that period, a population exceeding one 
thousand souls. Yet our settlements had com- 
menced on the Piscataqua twenty years before, 
and only three years after the landing of the Pil- 
grims at Plymouth. Portsmouth and Dover were 
however thought of sufficient importance, to have 



;28 

a court approaching in jurisdiction to the county 
courts of Massachusetts, and the county was usu- 
ally styled the county of Norfolk, including the 
county of Dover and Portsmouth. On our separ- 
ation, this county of Norfolk was obliterated; 
and the towns on the Merrimack falling within the 
jurisdiction of Massachusetts were annexed to 
their county of Essex. This court of Dover and 
Portsmouth had a probate jurisdiction, whether 
limited or not, I have not been able to ascertain. 

Again, at what may we estimate our population 
at the time when by the authority of the crown we 
were reluctantly and finally separated from Mas- 
sachsetts in 1692 ? Not more than five thousand 
souls at most 5 and even this will shew an increase 
for the intervening period of fifty years, of about 
forty per cent, for every ten years. At the time of 
the division of the province into counties, in 1771, 
our population has been estimated to be from sixty- 
fiive to sixty-eight thousand. This will give an in- 
crease for the preceding eighty years, somewhat 
less than forty per cent, for every ten years. From 
this period to 1790, when our population is known 
to have been one hundred and forty-two thousand, 
the rate of increase was about forty-three per cent, 
for every ten years. This may appear extraordi- 
nary, considering that the war of the revolution oc- 
cured within this period, but the division of the 
province into counties was attended and follovved 
by an unusual influx of population. Massachu- 
setts had been divided into counties more than a 
century and a quarter before. From 1790 to 1800 
the rate of our increase was about thirty per cent. 5 
from ISOO to 1810 about sixteen per cent.; from 
1810 to 1820 about fourteen per cent.; and from 
thence to 1830 about ten per cent. The increase 
of the population of New-England from foreign 
sources ceased in 1640, about the time of our un- 
ion with Massachusetts. From that period more 



3477- 6t 
Lot-"! 9 



29 

have gone from it than have come to it ; and esti- 
mating that for the coming ten years the natural 
increase of our population in this state, will be 
thirty per cent, (probably it will be nearer forty 
per cent.) and that we shall be able to retain with- 
in our limits one third of that increase, it follows 
that in this short period, there will proceed from 
us fifty-four thousand souls to people, and we trust, 
to bless some other part of God's earth. 

Gentlemen of the Historical Society : — Enter- 
taining views as to the time when the common law 
of England became the common law of New- 
England, somewhat different from those usually 
expressed on this subject, it was originally my in- 
tention to have submitted those views to your in- 
dulgence, especially as they would be connected 
with facts highly illustrative of our civil history, 
and nearly allied to the subject which has partic- 
ularly attracted my attention ; but time would fail 
me, as well as your patience, upon which I fear 
I have unreasonably trespassed. 



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